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Osheroffs, City Reach Out-of-Court Settlement

Family of 9-year-old girl struck while crossing San Marin Drive will receive $675,000.

The city of Novato said Monday that it reached an out-of-court settlement worth $675,000 with the parents of 9-year-old Melody Osheroff, who was struck and killed by a drunk motorcyclist while crossing San Marin Drive in 2009.

As part of the deal, the city assumed no responsibility for the fatal incident and continues to place blame on Edward Schaefer, the Novato man who rode through a stop sign at about 60 mph and struck Melody and her father, Aaron Osheroff, who sustained serious injuries.

Also, a memorial will be installed to honor Melody at a city park, the city said.

“We are glad to have reached agreement with the Osheroff family,” City Manager Michael Frank said in a statement. “We understand that the Osheroffs will never recover from this tragic loss, but we hope with the installation of a memorial the community will have an opportunity to continue to honor Melody.”

Aaron Osheroff, who had a leg amputated and early lost his other leg as a result of the crash, filed a civil lawsuit against the city along with his wife, Kim. They contended that the city should have had a crosswalk on the eastern side of the intersection of San Marin Drive and San Carlos Way. It was later added, giving the intersection a four-way crosswalk.

"I believe we would have a better chance at the other crosswalk, which they added after the fact," he said Monday. 

The Osheroffs' attorney, Walter Walker, told the Marin Independent Journal that the family's contention was that the line of sight was obscured for pedestrians using the one marked crosswalk available for people crossing San Marin Drive at that intersection.

"The city of Novato is to be commended for undertaking changes designed to improve the intersection for its citizens," Walker, with the firm Walker, Hamilton and Koenig, told the IJ.

Osheroff worked with then-Assemblyman Jared Huffman and Marin County Supervisor Judy Arnold on legislation to deter repeat DUI offenders from driving. The law would have prevented anyone with three convictions from owning or registering a car and would permanently revoke that person's license. "Melody's Law" didn't get through the state's safety committee, but another less-strict law did. 

Osheroff said the city and state still need to figure out ways to protect people on its residential streets.

"If our government is going to allow drunk or reckless drivers on the road, pedestrians need the best possible chance to avoid them," he said.

Schaefer was convicted of second-degree murder and other charges, sent to San Quentin State Prison for 24 years to life, and was subsequently stabbed to death by another inmate within days of his arrival. However, the Schaefer estate had minimal assets, so the city of Novato was at risk of paying nearly all of Aaron Osheroff’s economic damages — including past and future medical bills and past and future wage loss — even if the city was found minimally at fault, according to the city.

Based on evidence presented by the Osheroffs, the potential exposure to the city was several million dollars, the city said. 

Two weeks after Melody died, the city hosted a community workshop to discuss pedestrian safety. Public works director Glenn Young, now retired, said adding warning reflectors onto the pavement or flashing signs would irritate neighbors and speed bumps would be opposed by first-responders who would have to slow down during emergency calls. Most at the workshop agreed that spending upwards of $400,000 for a stoplight would not add to pedestrian safety because green lights might encourage speeders.

About a month later, the city painted the fourth crosswalk in the intersection. Then-Councilwoman Carole Dillon-Knutson, who lives a block north of the intersection, said at the time that the community had been looking at that option for quite a while to make crossing easier. 

Osheroff said the city ought to investigate some form of speed deterrents or even intentional curves added to some roads, such as the jogs that were installed three years ago on Eucalyptus Avenue during a repaving project.

"If we're going to have drivers in Novato who blow through stop signs drunk or blowing down Sutro Avenue at 80 mph drunk, perhaps the city engineers need to consider some physical deterrent such as what they have on Eucalyptus Avenue," Osheroff said.

In September, a state appeals court reversed a $1.4 million restitution award to the Osheroffs and said it should have been vacated along with Schaefer's convictions when he was killed because his court appeals could no longer move forward.

The city of Novato had asked a Marin judge to toss out the civil case, but it was denied.

In February 2012, Frank Souza pleaded guilty to the first-degree murder of Schaefer in the prison's exercise yard on July 26, 2010, two weeks after Schaefer started serving his sentence.

The Novato Police Department has prioritized drunken driving enforcement the past three years and recently set a modern-day record for most DUI arrests in a one-month span. Officers have received advanced training in the detection of alcohol- and drug-impaired driving.

“Novato is a zero-tolerance community when it comes to impaired driving and we continue to be vigilant with our DUI enforcement efforts,” Frank said.

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Jerome J Ghigliotti Jr November 28, 2012 at 02:37 AM
@Chester, I respectfully disagree. The loss of life of a child and amputation of an adult's leg would bring a jury verdict against any entity which was actually responsible at ten times the amount of the settlement. Nothing can relieve the personal family tragedy suffered by the Osteroffs. The legal fact that the city was not at fault led to the greatly reduced settlement amount. Californians (jurors) have the philosophy that "someone has to pay". The dead perpetrator and the State of California are the real culprits, but the state could easily avoid any payment because they "just made the laws", and state law provides immunity for that. Until the people of California elect legislators of a philosophy that responsibility for drunk driving must be dealt with in a Draconian manner we will continue to experience these personal tragedies. The leftists currently elected have an unimaginably long list of excuses and exclusions from responsibility. You elected them, I did not.
Baxter November 28, 2012 at 08:01 PM
Jerome - correct me if I'm wrong, but the attorneys for the Osteroff's (personal injury and/or insurance defense) usually get almost half of the agreed upon settlement for their fees and costs. I'm assuming the Osteroff family will receive much less then the $675,000 to actually put in the bank. In other words, I don't believe the Osteroff's would be very happy with the settlement amount.
NovatoCitizen November 29, 2012 at 12:08 AM
You can go ahead and be pissed off if you want to. Did you bother to actually read the article? No one disputes that the drunk would have run the stop sign. The issue is whether the victims were able to see the drunk. Maybe you'd like to stand in a crosswalk where you can't see the drunk.
NovatoCitizen November 29, 2012 at 12:09 AM
I agree. Cars should be taken from drunks and sold at auction. And they money put into a fund that puts drunk drivers in prison.
NovatoCitizen November 29, 2012 at 12:15 AM
Glad some people took the time to read the article. Cars should be taken from drunks and sold at auction. And yes, much stronger laws are needed to do anything about this problem. The state should be held accountable for their pathetic laws. The judges who let Schaefer on the roads should be in prison. For everyone who finds the settlement "disturbing", perhaps they'd feel different if they were mowed down by a drunk driver they couldn't see coming at them and/or had a child killed by a drunk.
Jerome J Ghigliotti Jr November 29, 2012 at 07:48 AM
Again, there is no way to compensate the Osteroff for their loses. NOTHING will make the Osteroffs "happy". You cannot place a dollar amount on the loss of a loved one, or the loss of a limb. Generally, personal injury lawyers deduct "costs" from the settlement, court filing fees, depositions, copies of police reports. Then the attorney usually receives 1/3rd of the settlement amount (before or after deducting costs). Medical providers receive a portion of the settlement for services provided, ambulance rides, treatment to stabilize the severed leg, et cetera, but even if their costs are higher, they usually do not receive more than 1/3rd of the settlement amount. So, the Osterhoffs will likely receive about 1/3rd of the settlement amount, or just over $200,000. Depending upon how the settlement is worded, the IRS and FTB may or may not take their percentages of the settlement, which would be about $66,000 further deducted from the Osteroffs share of the settlement. If the settlement is worded so that the payment to the Osteroffs is compensation for future medical care, IRS/FTB would likely not take a percentage.
Jerome J Ghigliotti Jr November 29, 2012 at 07:55 AM
But should not the persons/entitles responsible be making these payments, not just the nearest deep pockets. How about deducting this award from the salaries of the judges in the prior cases, and the DUI friendly legislators in Sacramento. Remember, you elected them, I did not.
Jerome J Ghigliotti Jr November 29, 2012 at 07:56 AM
@NovatoCitizen, actually, the issues are far more complex than that, but I am not arguing with your point.
Jerome J Ghigliotti Jr November 29, 2012 at 08:02 AM
If commentors agree that cars/motorcycles/trucks should be taken away from DUI convicts and sold at auction, and no one seems to disagree, then why have the "representatives" in Sacramento not changed the laws to accomplish this? Who are they representing? Not me, not you. Who elected them??? Where is MADD when you need them? Next time you think about making a charitable contribution, inquire about their current objectives and make a contribution to MADD.
Novato Native November 29, 2012 at 04:29 PM
The settlement isn't about who has the deepest pockets. Settlements and damages awards in the court system are meant to either return the injured party to the state they were in before the accident or to punish bad behavior. Obviously, there is no way to fully return a person to "whole", but it must be done in some way. Technically, the only responsible party was killed and his estate contained "minimal assets" which indicates that his estate alone would not have covered the cost of their recovery. While you may feel wronged by the judges and legislators in Sacramento, they are not responsible for this accident. If you are unhappy with your legislators, there are ways to change the laws that are being made, but I think you underestimate how much hard work goes into the legislative process. And as for the judges, unless you've read and understood every opinion written with respect to this case, you'll never know why they made the decisions they did.
NovatoCitizen November 29, 2012 at 05:02 PM
@Jerome: I don't anyone would disagree that vehicles should be taken away from drunks, and sold at auction. Well, anyone except the drunks themselves, and those who enable and coddle these drunks. And those drunks and enablers of drunks know know who you are, don't you? The lawmakers have not changed the laws because they do not represent "us", obviously. MADD is a good organization, but maybe they are "reactive" (helping families who have had lives destroyed by drunk drivers), as opposed to "proactive" (helping get laws passed that PREVENT this from happening).
John Patch November 29, 2012 at 11:38 PM
The drunk driver didn't stop at the stop sign, so a light probably wouldn't have helped. But they are taking money from the city, and that money COULD have gone to more DUI or other enforcement. They are putting MORE people at risk for their greed. The city didn't drink. The city didn't drive. The city had a cross walk and stop sign there. How could the city be responsible? Maybe all cities should be responsible for all crimes?
John Patch November 29, 2012 at 11:42 PM
So the winners are the attorneys and the IRS. At least the doctors provided a value added service.
John Patch November 29, 2012 at 11:45 PM
They did not "lose" a wage earner. The father survived and is employed. Many local and non-local citizens also offered them free money and services amounting to tens of thousands of dollars. I wonder if they included those on their tax returns.
Novato Native November 30, 2012 at 01:12 AM
In the court's eyes, it is a loss of earning capacity. They consider what he did before the accident and if his injury will impair his earning capacity and his ability to be promoted after the accident, but that is if the case goes to trial. In awarding damages, courts don't consider any outside help for families. And what do you care if they claimed it as income on their taxes? How do you even know they accepted all this money or even if they accepted any at all? The family is in a bad spot as it is, and taxes are probably the last thing on their mind.
Jerome J Ghigliotti Jr November 30, 2012 at 01:24 AM
@NovatoNaive, YES, the settlement IS about who has deep pockets. And, yes, the permissive leftist, social engineering legislators and bleeding heart leftist judges are at fault and to blame. I cannot change the laws because the "Open" primary has made California a one-party state and those who would pass laws to hold DUI drivers responsible cannot even get on the ballot. YOU elected them. You are at fault and to blame also.
Jerome J Ghigliotti Jr November 30, 2012 at 07:27 AM
@Novato Citizen, you are absolutely correct. MADD IS reactive instead of proactive. MADD used to be proactive. MADD used to have volunteers who sat in every courtroom in which a DUI case was heard, and reported on the ability of these judges to protect the public. MADD used to pressure Sacramento very effectively. Will someone not take up the gauntlet and re-vitalize MADD? Novato Citizen, what are you doing with your spare time?
Jerome J Ghigliotti Jr November 30, 2012 at 07:30 AM
@John Patch, if we were in the same room, I would be compelled to slap you and hope that you were too ashamed of yourself to report me to the police. Apologize to the Osteroffs!
Jerome J Ghigliotti Jr November 30, 2012 at 07:42 AM
@ John Patch, please see below re: my slapping you in the face. (No, I would not do it because you probably would report me). You are obviously unaware of the high liability case in Antioch a number of years ago. The City of Antioch was found 1% liable by the jury. What the jury did not know was that the City of Antioch was the only deep pocket defendant. The law, at the time, allowed the injured parties to collect all of the huge sums awarded by the jury from the city because none of those really at fault had any money or any insurance. The burden upon the truly innocent taxpayers was so outrageous that the Sacramento mob actually changed the law to only allow (medical) damages from a deep pocket and largely innocent defendant, instead of all of the generous jury award in future cases. This is another outrageous instance that should stir Novato citizens to hold the true culprits liable and pay out of their pockets for DUI laws that are too "forgiving". Do not whine about your $32 per year. Bombard your "representatives" to get responsible and get DUIs off of the roads, permanently, instead of only after they have killed someone.
NovatoCitizen November 30, 2012 at 05:00 PM
@John "Patch": Read the article. He said "If our government is going to allow drunk or reckless drivers on the road, pedestrians need the best possible chance to avoid them." No one is suggesting that the drunk would have stopped. The points made in the article are about whether the father and child could see the drunk motorcylist. Are you suggesting that that people shouldn't be able to see the drunk drivers blowing through stop signs, given all the drunks on the road? And that their lives should be in the hands of the drunks?
Novato Native Jr. November 30, 2012 at 07:15 PM
@Novato So the city is at fault because the earth isn't flat? Or because other cars on the street aren't transparent? If this were at night, then the city is fault because the earth rotated away from the sun? San Francisco and other city's are in deep doodoo for having any streets on hills. So is Pacifica... all that darn fog.
Novato Native Jr. November 30, 2012 at 07:19 PM
"Better to settle it now ..."??? How can this be better? It probably would have been better for public funds elsewhere because then you at least cut out the lawyer's costs. Is it somehow less costly for the city to pay them than some other source?
Novato Native Jr. November 30, 2012 at 07:26 PM
"...his injury will impair his earning capacity and his ability to be promoted after the accident" -- This is a complete insult to anyone with a disability, either born with one or acquired later. There are many, many successful people with disabilities. "And what do you care if they claimed it as income on their taxes? How do you even know they accepted all this money or even if they accepted any at all? " I don't know about John, but I am one of those who gave generously to this family and knew many others who gave significant gifts, money, food, and services. So I can attest to them accepting gifts (they didn't return my money, so I take it that they kept it). And I too care if they claimed it on their taxes. Why? Because I'm hoping that they are worthy of the blessings they received from so many people. I'm hoping they are not cheaters, that they are good people, that they would have some integrity. If not, that just demonstrates even more the greed from the lawsuit.
Novato Native Jr. November 30, 2012 at 08:07 PM
@Novato If the issue is "whether the victims were able to see the drunk," then perhaps the city was to blame because the world is not flat. How dare they build a city on a hill! Maybe they should sue the motorcycle company for making the bike, the gas company for the gas, the beer company... Maybe you can blame car companies for having blind spots while you're at it. @Jerome - John Patch is entitled to his opinion. No need to resort to threats because you don't agree.
Novato Native Jr. November 30, 2012 at 08:10 PM
Since there is no way to compensate them for their losses and nothing will make them happy, then they shouldn't have sued the city in the first place, because that does nothing for them yet hurts others.
Jerome J Ghigliotti Jr December 01, 2012 at 03:09 AM
@NovatoNativeJr, I wish that I could withdraw my comments and I wish that my instinct were not to slap the face of John Patch. He is entitled to his opinions, but he is not entitled to demean and denigrate innocent victims. His comments are equivalent, to me, to grabbing the buttocks of a person on a crowded bus. I still think that he should apologize to the Osheroffs.
NovatoCitizen December 02, 2012 at 12:22 AM
@Novato Native Jr. (or John "Patch" or whatever you're calling yourself at the moment): yes, you're exactly right! The city is at fault because the earth isn't flat. Excellent, critical thinking on your part. Families have no right to see a drunk coming at them in a crosswalk. Good thing you've called the situation so well. Uh...go look up "slippery slope" and take a critical thinking class. It may do you some good.
NovatoCitizen December 02, 2012 at 12:29 AM
@Novato Native Jr./John "Patch/Whatever Name you're using: That family lost a daughter and the dad was critically injured. For you to call that family cheaters and greedy is disgusting. Do you know them personally? Do you know anything about them? Do you know anything about what they've gone through? And what they are facing? If you did in fact give to that family, that is great, and very noble, but you sound like one of those bitter old laidies that give their grankid a gift and then wait by the mailbox for a thank you card and then complain when you don't get one.
NovatoCitizen December 02, 2012 at 12:34 AM
@Jerome J Ghigliotti Jr: I think your instinct to slap John Patch in the puss is right on. That doesn't mean you would do it, it just means that John "Patch" (or whatever name he is using at the moment) is spouting off nasty offensive garbage from the safety of behind his/her/its computer. You would be wasting your time to slap that person. They are as nasty as they come and nothing would change that. It's one thing to state their opinion, it's another to say that kind of cowardly crap.
Novato Native December 03, 2012 at 05:22 PM
@Novato Native Jr. Those are not my words, but the words of the court. That is how they see an injury like this, and it was not meant to be disrespectful in any way. While it may seem rude at first glance, it is the courts way of telling the jury that what happened was tragic and in order to better compensate the plaintiff, this loss should be considered. I stated it in that way to demonstrate that if they had gone to court, the damages award would have taken this factor into account and damages would have been much greater, and the lawyers fee would have been greater too, and the public would still have had to pay for that. What other source would you suggest the settlement come from? The real party at fault had minimal assets and would not have been able to cover the medical costs. At the very least, the family deserves that.

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